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New Jersey Division of Youth and Family Services v. B.S

May 12, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FN-18-224-08.

Per curiam.



Submitted March 15, 2011

Before Judges Wefing, Baxter and Koblitz.

Defendant father J.S. appeals the order of March 30, 2009, finding that he neglected his eleven-year-old son, John,*fn1 by punching the child in the stomach during a physical altercation with John's mother B.S. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On December 4, 2007, a physical fight occurred between the parents, J.S. and B.S., at their home. The police responded to the altercation and arrested J.S. B.S. was then granted a temporary restraining order (TRO) and was ultimately granted a final restraining order (FRO) against J.S. under the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 to -35. The next day, on December 5, 2007, John complained of pain in his stomach. B.S. first took him to a pediatrician at Somerset Pediatrics who found blood in his urine and suggested she take John to the hospital. She then took him to Morristown Memorial Hospital. The Division of Youth and Family Services (Division) received a police referral the same day. The assigned caseworker, Sha-tee Malcolm, obtained a copy of John's medical records as part of her investigation. After an investigation, the Division substantiated abuse against J.S. based on the "family's past domestic violence history, the current case, and the possible injury that the child sustained, and the endangerment of the other two children that were there." The Division filed a verified complaint seeking the care and supervision of John and his two sisters. On February 23, and March 16, 2009, a Title 9 fact-finding hearing was held.

Both parents, the Division caseworker and the officer who responded to the home on the night of the altercation testified at the fact-finding hearing. B.S. testified to the following facts regarding the incident. She returned home from teaching religious education classes with John and his sister, Tracy, around 6:15 or 6:20 p.m. J.S. was upset that his dinner was not yet prepared because he "liked his dinner between 5:00 [and] 5:30 [p.m.]" B.S. began preparing dinner in the kitchen and poured herself a glass of wine from a bottle she had in the refrigerator.

J.S. then pushed B.S. several times until she fell backward and hit her head on the furniture. John intervened and told J.S. to "stop hurting mommy." J.S. responded that John should "stay out of it," and J.S. punched John in the stomach, back and head. B.S. tried to pull J.S. off John and admitted she could have scratched J.S.'s neck and back in the process. B.S. called out to her daughters to call the police. J.S. yelled, "you're not doing that to me again," and disconnected the phone. B.S. was unable to get the phone to work, and was searching for her cell phone when the police arrived.

B.S. also testified about two domestic violence incidents, in 2000 and 2003. The parties reconciled after both incidents.

According to B.S., J.S. was a strict disciplinarian. She said he "believed that children were born evil and that you have to break their spirit, so he felt that spanking them was . . . the way to . . . break their spirit." She also believed that J.S. was harder on John than he was on the girls. B.S. explained that J.S. would tell the children to "assume the position" and then spank each child seven times. She said that if the children did not lie still, he would increase the spankings by seven. Further, she said that J.S. "felt that [it] was his Godly right, his fatherly right" to punish the children. J.S. also believed that alcohol was evil, and drinking alcohol was a subject of disagreement between J.S. and B.S.

Contrary to B.S., J.S. testified to the following facts regarding the incident. On December 4, 2007, he arrived home from work around 5:00 p.m. and prepared dinner for himself and his daughter, Cindy. When he was cleaning up after dinner, he found a bottle of wine in the refrigerator that was not there the night before. Since he did not like B.S. drinking, he poured the wine down the sink and filled it with water, "to let her know that I'm watching her drinking and I'm not happy with her excess drinking."

Then, B.S. came home around 6:45 p.m. with Tracy and John. She was upset that the wine was empty and left the house for half an hour. While B.S. was out of the house, Cindy and John had a "scuffle," and John hit Cindy in the chest with a plastic toy. J.S. explained to John that hitting was wrong and then disciplined him by spanking him. J.S. stated that John told him that Cindy had punched him in the stomach and she deserved to be punished.

After the "scuffle," J.S. separated the children and was sitting on the bed in his room with Cindy when B.S. returned home with a large bottle of wine. B.S. was upset and angry, and she came into the room with "a crazed look in her eye" trying to "punch him." B.S. kicked him in the ribs twice, and he grabbed her wrists, backed her out of the room and closed the door. B.S. came back into the bedroom with a hockey stick and began hitting J.S. Then, Cindy "screamed daddy's ...

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